Presentation on Nigeria`s Recovery efforts 2

Report
Prosecuting Trans-border Crime:
Challenges and Prospects
A presentation delivered by Chief Godwin Obla
SAN, FCIArb
Introductory remarks/graphic
illustrations
In 2012 Nigeria was ranked no 139 on Transparency International’s
Perception Index.
In 2013, Nigeria slipped to No 144 on the Index.
The country is perceived as having one of the most corrupt public sectors
in the world, with its Transparency rated at 27%.
The United Nations Office on Drugs and Corruption (UNODC) estimates
that between $480bn – $600bn have been stolen from Nigeria’s coffers
between independence and Now.
There have been several efforts to recover these assets, but mostly they
have failed.
Why is this so?
Nigerian Public Funds stolen between
1994-2014 Amount Stolen ($)
Amount Stolen
Joshua Dariye
50,816,000
Jolly Nyame
10,123,456
James Ibori
264,011,200
John Yesufu
235,802,469
Cecilia Ibru (pleaded guilty)
1,300,000,000
Chimaroke Nnamani (PEP)
243,000,000
DSP Alamieyesegha (PEP)
243,363,200
Lucky Igbinedion (pleaded guilty)
Tafa Balogun (pleaded guilty)
Sani Abacha
154,559,500
150,000,000
8,410,000,000
Sources: Charges filed before the court;
CAPITAL LOSS AND CORRUPTION: THE EXAMPLE OF NIGERIA by Nuhu Ribadu, Former Executive Chairman, Economic and Financial
Crimes Commission (EFCC) of Nigeria.
Prosecution of Money
Launderers/Fraudsters in 2013
Total Convictions
117
Cases Arraigned
Source: http://www.efccnigeria.org/index.php/news/736-efcc-sets-to-secure-more-convictions-in2014
533
Definition
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Corruption
is
a
complex
social,
political
and
economic
phenomenon.
(http://www.unodc.org/unodc/corruption.html)
There is no single, universally accepted and comprehensive definition of corruption.
Attempts to develop such a definition invariably encounter legal, criminological and, in many countries, political
issues.
Corruption may be operationally defined as the misuse of entrusted power for private gain.
Corruption means bribery and related offences.(CPC ACT)k
Cross-border corruption may be defined as corrupt practices, which transcend national geographical territory, in
contravention of national or transnational laws, involving individuals, body corporate and in some cases politically
exposed persons(PEP).Examples include: Embezzlement, nepotism bribery, misappropriation, mismanagement,
undue gratification, bid rigging, e.t.c..
Note:
Only the category of corruption which qualifies as crime that may be prosecuted. Section 36(6)(12)of the 1999
Constitution of the Federal Republic of Nigeria (as amended) vis-à-vis persons charged with criminal offence
stated that; “ … a person shall not be convicted of a criminal offence unless that offence is
defined and the penalty therefore is prescribed in a written law …”.
An act may be morally reprehensible unless there is a law which makes that act punishable and
goes ahead to prescribe the punishment for it ,a Judge, any court of law is hamstrung to
sentence and punish the perpetrator . (Per Aderemi JSC in Dapianlong v. Dariye (2007)8NWLR
(Part 1036)SC 332 at paras. A-B)
Relevant Laws
 Relevant Laws In Nigeria:
 Economic And Financial Crimes Commission (Establishment ) Act
(EFCC Act) 2004.
 Money Laundering (Prohibition ) Act (Ml Act) 2011.
 Public Procurement Act (PP Act) 2007.
 Corrupt Practices And Other Related Offences Commission Act
(CPC Act)2003.
 Code Of Conduct Bureau And Tribunal Act C.15 LFN 2004
Cross-border corruption cases prosecuted
by Chief Godwin Obla SAN, FICArb include:
 CHARGE No CR/95/10 (FCT High Court of Nigeria) FEDERAL
REPUBLIC OF NIGERIA v. IBRAHIM ALIYU, AVM ABDULLAHI
DOMINIC BELLO, MOHAMMED GIDADO BAKARI, URBAN
SHELTER LIMITED, INTERCELLULAR NIGERIA LIMITED, TRISTAR INVESTMENT LIMITED, TSKJ NIGERIA LIMITED, TECHNIP
S.A, SNAMPROGETTI, KELOGG, BROWN AND ROOT INC, JAPAN
GASOLINE CORP OF JAPAN,TSKJ CONSORTIUM.
 CHARGE NO FHC/ABJ/CR/162/2010 (Federal High Court of
Nigeria):THE FEDERAL REPUBLIC OF NIGERIA v. SIEMENS
NIGERIA LIMITED, SIEMENS AG, C. WOERMAN NIGERIA
LIMITED, C. WOERMAN AG, DETLEV WOERMAN (at large),
EDWARD SEIDEL (at large), RALF HENRICH, DICK WARNER (at
large).
Cross-border corruption cases prosecuted
by Chief Godwin Obla SAN, FICArb include:
 CHARGE
NO
FCT/CR/119/10
(FCT
High
Court,
Abuja):FEDERAL REPUBLIC OF NIGERIA v. SIEMENS AG, SIEMENS
LIMITED, MAIGADA SHUAIBU, MAHMOOD SADIQ MOHAMMED,
EMMANUEL CHUKWUEMEKA OSSAI, EDWIN MOORE MOMIFE
 CHARGE NO: FHC/L/297C/2009 (Federal High Court of Nigeria)
FEDERAL REPUBLIC OF NIGERIA v. DR (MRS) CECILIA IBRU
 CHARGE NO CV/435/2010 (FCT High Court, Abuja) FEDERAL
REPUBLIC OF NIGERIA v. HALLIBURTON INC, HALLIBURTON
NIGERIA LIMITED, KELLOGG, BROWN AND ROOT INC (KBR),
RICHARD “DICK” CHENEY, ALBERT “JACK” STANLEY, WILLIAM
UTT, DAVID LESAR,TSKJ NIGERIA LIMITED,TSKJ CONSORTIUM
THE PRACTICAL CHALLENGES VIS-À-VIS
THE PROSPECT
Settlements
Settlements are being used increasingly to dispose of cases
involving international money laundering and bribery.
This is because of the relative ease (when compared with
litigation which can often be drawn out and expensive) of
getting a guilty verdict and recovering the assets illegally
moved.
Ingredients Of settlements
 In Nigerian practice so far, four ingredients have been
present in cases were individuals and corporate bodies were
indicted in corruption/money laundering cases:
 The offender is charged. In some cases, some organizations initiate
settlement moves as a prelude to being charged.
 The offender pleads guilty
 The offender agrees to pay monetary fines among other terms
 The terms of the agreement are kept confidential, subject to
exceptions woven into the agreement.
How successful have settlements
been?
Statistics available from the Stolen Assets Recovery Initiative show that of the 395
cases settled between 1999 and mid-2012, a total of about $6.9 billion dollars
have been imposed as monetary fines in 3 categories:
 About $5.9 billion was awarded in countries other than the victim/affected countries.
 About $556 million was awarded in countries where the bribery took place
 Other cases amounting to about $385 million
 It is interesting to note that of the first category, only $197 million was actually
returned to the Jurisdictions where they were stolen from.
Source: “Left out of the Bargain: Settlements in Foreign Bribery Cases and Implications for Asset Recovery” by J.A. Oduor, F.M. Fernando et al” A publication
of the Stolen Asset Recovery Initiative. Available at http://www.star.worldbank.org?star/sites/star/files/978146800863.pdf
Corporate Bribery cases in Nigeria
disposed of by Settlement
 Siemens AG (Telephony Infrastructure Contracts bribe scheme)
 Bribe Offered: $22,000,000
 Money Paid in Fines: $50,000,000
 Julius Berger (Money Laundering)
 Amount laundered: $5,000,000
 Money paid in Fines: $29,000,000
Bribery by Oil Services and Freight Forwarding Companies
This is in relation to the Panalpina Bribery Scandal involving the Nigerian Customs. NOTE: that at
the time prosecution was contemplated in Nigeria, Panalpina Nigeria which was the culprit had
been wound up and was no longer in existence legally.
 Noble- Swiss Corporation Monetary fine paid: $2,500,000
 Tidewater Inc
 Monetary Fine Paid: $6, 300,000
Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
Corporate Bribery cases in Nigeria
disposed of by Settlement

TSKJ Consortium (Bonny Island Liquefied Natural Gas Bribe Scheme)
The TSKJ Consortium (consisting of Technip, Snamprogetti Netherlands B.V, Japan Gas Company, Kellog-Brown Root , a
subsidiary of Halliburton) was formed to bid for contracts to build the Bonny Island Liquefied Natural Gas Plant in
Bonny, Rivers State. In order to secure the contract, the consortium paid bribes amounting to $170,000,000 to various
low and mid-level public officers. When the consortium was charged, they separately agreed to an out of court
settlement. Among other terms, the following were paid as follows:
 Technip- $30,000,000.00
 Snamprogetti Netherlands B.V. $32,500,000.00
 Japan Gas Company- $24, 385, 000
 Kellog-Brown (Halliburton)- $35,000,000
 The Nigerian Attorney-General, Mohammed Bello Adoke SAN in a press conference
stated that apart from these fines, the consortium was forced to disgorge profits
already made, which pushed the total figure recovered to $170,000,000.
Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
Amounts given as bribes/laundered
compared with money recovered via
settlement
Chart Title
Bribe paid/Amount Laundered ($)
Monetary Fine Paid ($)
35,000,000
32,000,000 30,000,000
29,000,000
24,355,000
6,000,000 5,000,000 6,000,000 6,000,000 6,000,000
2,800,000
6,300,000
Source: Settlement database on sTAR. Available on http://www.star.worldbank.org
In addition to Monetary Fines
 Indicted corporate organizations are required to submit
annual audit reports to the Monitoring and Compliance
committee.
 They are also required to provide any information
concerning finances and government relations to the
committee.
 They are required to train and retrain staff, with regard to
ethics and International best practices in government
relations.
Challenges to Recovery of Stolen
Assets
 Many of the persons indicted are high ranking public officials protected by immunity clauses.
 Even when they leave office, their allies in power shield them from prosecution.
 The stolen assets are moved to corruption havens/countries with no extradition treaties.
 The countries where these monies are moved practically shield the offenders from the law
 The United states government refused a Mutual Legal Assistance request by Nigeria in the
TSKJ consortium case.
 The Nigerian participants in the TSKJ bribery could not be prosecuted because the evidence
needed to convict them was in possession of the German authorities. The German constitution
prevents the government from releasing information to aid the trial of its citizens in other
countries.
 France once refused an application for Mutual Legal Assistance from Nigeria because the Request
was written in English.
 The countries where stolen Assets are hidden benefit more from the funds and are unwilling
to return them to the affected countries.
 The United States recently froze over $450mn dollars of the Abacha loot.
 $100mn, part of the bribes paid by the TSKJ consortium was seized by the Swiss Government
and remains frozen.

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